War Story Wednesdays
California Lawyer

War Story Wednesdays

April 2013

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Every other month, the Hanson Law Firm hosts "War Story Wednesdays," a lunchtime forum for lawyers to share their tales of triumph and struggle in the legal profession. In February three lawyers told their stories at San Francisco's City Club, and all who attended earned CLE credit. Hanson Law Firm founder Christopher Hanson talked about a goat farmer who sued his client, Ingersoll Rand. Here is his story:

The plaintiff was a goat farmer in Joshua Tree, California who was involved in an auto accident as she returned from her mother's funeral in LA.

While heading east on Interstate 10 in stop-and-go commuter traffic, an Ingersoll Rand mining repair truck going approximately 10 mph hit her from behind. She claimed it was like being hit by a train.

About two years earlier, her son, a former commercial truck driver, had hit someone from behind and the driver in the other car recovered substantial sums from her son's company. His mother appeared to be following the advice of her son, her fourth attorney, and her fifth doctor, and claimed a "total, permanent brain injury disability." She could no longer tolerate direct sunlight, or undertake farming chores like feeding her goats, or even "bucking hay" (stacking hay bales on top of one another by throwing them with a hook-like tool). Her demand: $6 million.

My client, Ingersoll Rand hired a surveillance company to film Linda and her life on the farm and sent us the tape, which we edited.

By the time the trial was ready to begin, we had film of her running down the long dirt driveway, hopping into a friend's truck, going to a gas station and then the feed store - where hay was loaded into the bed of the pickup. We also had pictures of her tossing that hay out of the back of the truck, single-handed, with a hay hook. But we also had had a big problem: We had no photographer to authenticate the images!

We didn't even know, until she appeared at trial, whether the woman in the film was indeed the plaintiff. The evidence code is pretty clear on such things. (For whatever reason we never took a deposition.)

We came to court armed with a pocket brief on the law: Films may be admissible to corroborate or show lack of injury (People v. LaVergne 64 Cal 2d 265 (1966)); and indeed, may stand to preclude conflicting oral testimony (Harmon v. San Joaquin Light and Power 37 CalApp2d 169 (1940)).

But the film must still meet foundation requirements to be admissible. And for our purposes, we needed the requirement of proof of that foundation.

A party seeking to introduce photographic evidence may authenticate that evidence by testimony of the photographer (People v. Cheary 48 Cal 2d 301 (1957)), or anyone else with sufficient personal knowledge of the scene depicted.

The "authenticator" may be "anyone present at the scene of the event depicted." (People v. Bowley 59 Cal2d 855 (1963).) This can be anyone "with personal knowledge of the matters depicted on the video-tapes." (Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles County 117 CalApp4th 1138 (2004).) Luckily for us, this includes the person depicted!

Now it's her day to testify. To set the stage, we bring in a full-sized bale of hay, and plunk it down in the center of the courtroom before anyone arrives.

She is called by her attorney and begins to dutifully testify about the full extent of her many, many injuries. Her attorney notes that the courtroom now smells greatly of hay. He points to the hay bale, and begins to ask his client questions about it: can she tell what kind of hay it is, what level of quality, how much it might weigh, and so on and so on. She opines that it is a poor sample, and one she'd never feed her goats because the quality is - obviously - so low. I nod, sagely, as all this is being talked about, never having asked a single question about the hay bale.

When it's our turn for cross, we show some pictures of the extent of her injuries and she confirms that she is unable to walk, run, go outside in the "piercing sun" or even "buck hay" for her beloved goats. I told her how sad I thought that was, and then showed her the film Ingersoll took. She said, "Yeah, I saw your guy taking pictures." So I said, "That is you, isn't it?" And she admitted it was. Here's the beauty of that statement. Photographic evidence is absolutely admissible, but it's like any other piece of evidence. You have to have a testimonial, and I had no way to be able to introduce this unless a party dictated what happened. And she did, just by saying, "That's me, I saw you guys take the pictures."

Then I said, "I thought you said that you couldn't go outside because of the piercing hurt to your eyes?" Certainly a hole in that story. As I said, the video also went on to show her going to the feed store, and loading bales of hay up on the truck. And finally, we see shots of her bucking hay, and I thought to myself, surveillance is a wonderful thing. Thanks to the video she had no case, and my client was in the clear.

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